Delhi District Court
State vs Amit Kumar on 22 December, 2023
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE-09 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Amit Kumar etc.
FIR No : 73/2020
U/s : 33/38/58 Delhi Excise Act
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020077192021
2. Date of commission of offence : 12.04.2020
3. Date of institution of the case : 29.01.2021
4. Name of the complainant : ASI Virender Singh
5. Name of accused, parentage & : 1. Amit Kumar
address S/o Gopi Chand,
R/o Plot no.4, 5, 6,
SF Flat no.S105, Vipin
Garden12, Uttam
Nagar, New Delhi.
2. Ravinder Singh
S/o Ranveer Singh
R/o H. no.19A, RZ F-
776, Raj Nagar, Part-II,
Palam Colony, Delhi.
6. Offence complained of : 33/38/58 of Delhi
Excise Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 22.12.2023
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State
Mr. Ajay Sinha, Ld. Counsel for accused persons.
Digitally signed
by Abhinav
Abhinav Ahlawat
FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 1 of 20 Ahlawat Date:
2023.12.22
16:00:58 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 12.04.2020 at about 08:15 AM, Kair Road, Mundhela Village Chowk, Delhi, accused persons were found carrying illicit liquor in a Ford Eco Sport bearing registration no.UP-16AW-5355 and thereby committed the offences punishable under Section 33/38/58 of Delhi Excise Act, for which FIR no.73/2020 was registered at the police station Jafarpur Kalan, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this court took the cognizance against the accused persons and summons were issued to the accused persons. On their appearance, a copy of the chargesheet was supplied to the accused persons in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Sections 33/38/58 of Delhi Excise Act was framed against both the accused persons on 21.10.2021. Later on, additional charge for offence under Section 52(2) of Delhi Excise Act was also framed against accused Amit Kumar on 27.09.2023. The accused persons pleaded not guilty and claimed trial.
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2023.12.22 16:01:10 +0530 PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused persons to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 ASI Virender Singh PW-2 HC Manoj Kumar PW-3 ASI Manoj Kumar PW-4 SI Onkar Singh DOCUMENTARY EVIDENCE Ex.PW1/A Form M-29 Ex.PW1/B Seizure memo of case property Ex.PW1/C Seizure memo of offending vehicle Ex.PW1/D Tehrir Ex.PW1/E Site plan Ex.P1 Case property Ex.P2 Case property Ex.P3 Case property Ex.P4 Photograph of offending vehicle Ex.P5 Photographs of sack Ex.PW4/A Form M-29 Ex.PW4/B Disclosure statement of Amit Kumar Ex.PW4/C Disclosure statement of Ravinder Singh Ex.PW4/D Notice u/S 41A Cr. P. C. served upon accused Amit Ex.PW4/E Notice u/S 41A Cr. P. C. served upon accused Ravinder Singh ADMITTED DOCUMENTS Ex.A1 FIR no.73/20 alongwith certificate under Section 65B of Indian Evidence Act Ex.A2 RC no.42/21/20 Ex.A3 Chemical examination result dated 27.07.2020 Ex.A4 Entry in register no.19
4. To prove its case, prosecution examined the following witnesses, the same are as follows.
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2023.12.22 16:01:18 +0530 PW1 ASI Virender Singh (complainant) deposed that on 12.04.2020, on the directions of senior officials, he was conducting checking of vehicles on account of Covid-19 lockdown at Kair Gaon Road, Mundela Chowk alongwith HC Manoj, another HC Manoj, Ct. Azad, Ct. Sandeep. At about 8:15 AM, one orange Ford Eco Sport vehicle bearing registration no.
UP-16AW-5355 which was coming from the direction of Haryana and going towards Kair Raod, Village Mundela Chowk, Delhi. He alongwith his staff signaled the vehicle to stop but in spite of seeing the same, the driver of the said vehicle sped the vehicle. He alongwith his staff chased the said vehicle and they stopped that vehicle at Surera Mor. The vehicle was being driven by Amit and Ravinder was sitting on the co-passenger seat. Both the accused persons were asked to get down from the car. A cursory search of the vehicle was conducted and they found cartoons of liquor in the trunk of the car. On inquiry from the accused person about the liquor, they could not give the satisfactory reply. On taking out the cartoons from the trunk of the car, they found 4 cartoons boxes containing total 48 bottles of "Royal Green", 4 cartoon boxes containing 192 quarter bottles Impact Dry Gin, two cartoon boxes of Kingfisher beer total 24 bottles. On every bottle of Royal Green label of "Royal Green Classic Blendid Whiskey a blend of imported scotch malts and the Finest Indian Grains Spirit 750 ml" was pasted. On each quarter of Impact Dry Gin label of Impact Dry Gin for sale in Haryana only 180 ml was pasted. On 24 Kingfisher beer label of Kingfisher Super Strong Premium beer for sale in Haryana only 650 ml was pasted. From each of the four recovered cartoon boxes of Royal Green, one bottle each was taken out as sample, the 4 cartoon boxes containing the remaining bottles were kept in Digitally signed by Abhinav FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 4 of 20 Abhinav Ahlawat Ahlawat Date:
2023.12.22 16:01:27 +0530 a sack which he had arranged. The mouth of the sack was tide with the white cloth and sealed with his seal VSY and the sack was numbered as serial no.1. Four sample bottles were kept in a separate cloth bag and the bag(thaila) was tide with a white cloth and sealed with seal of YSY and the bag containing samples was numbered as serial no.1A. From the 4 cartoon boxes containing Impact Dry Gin, one quarter was taken out from each as sample. The cartoon boxes containing remaining quarters bottles were kept in one raxin sack which was arranged for and the sack was sealed with a white cloth and sealed with the seal of VSY. The sack was given serial no.2. Four sample bottles were kept in a separate cloth bag (thaila) and the same was tide with a white cloth and sealed with seal of VSY and the said bag containing the samples was given serial no.2A. From the recovered boxes containing Kingfisher beer bottles, one bottle from each was taken from the boxes and the cartoons remaining bottles were kept in raxin sack which was arranged for and the sack was sealed with a white cloth and sealed with the seal of VSY. The sack was given serial no.3.The sample Kingfisher beer bottles were kept in separate white bag and the same was tide with a white cloth and sealed with seal of VSY and the said bag containing the samples was given serial no 3A. Seal after use was handed over to HC Manoj, he filled form M29 at the spot Ex.PW1/A. The recovered illicit liquor, samples thereof and the offending vehicle were seized vide seizure memos Ex.PW1/B and Ex.PW1/C respectively. Thereafter, he prepared tehrir Ex.PW1/D and got the FIR registered through Ct. Sandeep. ASI Omkar thereafter prepared site plan Ex.PW1/E. He handed over the case property and accused persons to IO. Further, investigation was conducted by ASI Omkar. The witness has Digitally signed by Abhinav Abhinav Ahlawat FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 5 of 20 Ahlawat Date:
2023.12.22 16:01:36 +0530 correctly identified both the accused persons present in court, orders dated 25.11.2021 and 24.11.2021 issued by Office of Commissioner, Excise Department and stated that vide said orders, the seized liquor at PS JP Kalan including the case property in the present case was to be destroyed Ex.PX and Ex.PY respectively. As per the orders, sample of the confiscated liquor were preserved. He proved case property as Ex.P1, Ex.P2, Ex.P3, offending vehicle Ex.P4 and photographs of sacks as Ex.P5. In the cross-examination, he stated that 12.04.2020, his duty hours started from 08:00 am however, in Corona time there was no fixed time and he used to go on duty as per requirement. He left the PS on that day at about 07:00 to 07:15 am. His departure DD entry was 10B. There were least emergency vehicle was passing at the time of corona period and they were checked. Due to the corona period, no public persons were at that place. There were no fix time, the passersby vehicle via that road, therefore, he could not say the vehicles were passing through that road at a time of 5 minutes or 10 minutes. There were no shop at the place of recovery. He left the place of recovery at about 10:30 to 11:00am. No vehicles passed to that road from 08:00 am to 11:00 am due to corona period. There were no office opened near the place of recovery which was allowed to open as per the order of Govt. of India. There were no residential houses nearby. He did not know whether there was CCTV camera in the way from where the said illicit liquor was recovered. He stated that he was having his mobile at the time of recovery. No photographs of the vehicle and illicit liquor were taken from his mobile as he was not having any smart phone.Digitally signed by Abhinav
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5. PW2 HC Manoj Kumar deposed on the lines of PW1. In the cross-examination, he stated that at the time of the incident, since it was lock down time hence, there were no fixed duty timings. On the day of the incident, he was already present at the PS as he had done night duty. They had left the PS at about 07:30 am and their departure entry being done at that time. The vehicle vide which they left the PS was a private car of ASI Virender Singh. He did not remember the registration number or the colour of the said car. They had reached at the spot at about 07:45 am.
They had parked their vehicle on the side and started doing their duty of checking the vehicles. He did not remember as to how many vehicles were checked by them prior to the arrival of the vehicle of the accused persons. It takes about a minute to verify from the driver the reason for his moving on the road during the lock down period. There were vehicles moving on the main Najafgarh Dhansa road at the spot i.e. Surehera Mor when they apprehended the accused persons. No vehicles were stopped for their drivers to join the recovery proceedings. There are no residential houses at the spot where the accused persons were apprehended. He remained at the spot of incident for about 1 ½ to 2 hours. The accused and the case property were taken to the PS by the vehicle of ASI Virender and the offending vehicle. He did not remember the exact time at which the rukka was sent by ASI Virender to the PS or the time at which the IO came to the spot of incident.
6. PW3 ASI Manoj Kumar also deposed on the lines of PW1. In the cross-examination, he stated that they left the PS at about 07:30 pm. They were patrolling in a private car. He could not tell the registration number of the said car. He had made the Digitally signed by Abhinav Abhinav Ahlawat FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 7 of 20 Ahlawat Date:
2023.12.22 16:01:52 +0530 departure entry. They reached at the spot within ten minutes. No barricade was installed on the spot. At the time of checking of vehicle, number of vehicles were coming and going through the checking point. He and his team used to check the lock-down passes of vehicles. He did not click photograph of the vehicle when the accused persons were apprehended. He stated that he did not take any photograph of the alleged liquor at the time of its recovery. Few public persons and some vehicles were coming and going at the time of arrest of accused persons. They had requested the public persons to join the investigation at the time of recovery of alleged liquor and at the time of arrest of accused persons but the public persons refused to join the investigation. He had not given any notice to any public person to join the investigation. He remained present at the spot for about two hours. He did not remember at what time he returned back from the spot to PS. He alongwith other police officials brought the illicit liquor on the vehicle of accused persons to police station from spot.
7. PW4 SI Omkar Singh deposed that on 12.04.2020, the investigation of the present case was marked to him after registration of FIR. Ct. Sandeep handed over him copy of FIR and original tehrir. Thereafter, he alongwith Ct. Sandeep reached at the spot where he met ASI Virender, HC Manoj Kumar, Ct. Azad and HC Manoj. They apprehended two persons. After reaching the spot, they handed over custody of accused persons and the seized case property which was recovered from accused persons. During interrogation, accused persons disclosed their names as Amit and Ravinder Singh. After that, he prepared the site plan at the instance of ASI Virender Singh Ex.PW4/A. Digitally signed by Abhinav FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 8 of 20 Abhinav Ahlawat Date:
Ahlawat 2023.12.22 16:02:02 +0530 During the investigation, he recorded disclosure statement of accused Amit Kumar and Ravinder Singh Ex. PW4/B and Ex.PW4/C respectively. During investigation, he also served notice u/S 41A Cr. P.C. to the accused Amit and Ravinder Singh Ex. PW4/D and Ex.PW4/E respectively. He asked some public persons who were present at the spot but they refused to join the same and left the spot without disclosing their names and addresses. Thereafter, he alongwith police staff, case property and the seized Ford car left the spot and reached at the PS and after reaching the PS deposited the case property in malkhana. During investigation, he also verified the ownership documents of the seized Ford car bearing no.UP-16AW-5355 and he found that Amit Kumar was the registered owner of the said car. During the investigation, he also recorded statement of witnesses u/S 161 Cr. P. C. After completion of investigation, he submitted the charge-sheet before the concerned court. In the cross- examination, he stated that he was not the witness of recovery of the case property from the possession of the accused persons. No CCTV camera was installed at the spot. He stated that he did not record statement of any public persons, who were present at the spot. All the public persons refused to join the investigation and left the spot without disclosing their names and addresses. He did not serve any notice to any public person to join the investigation of the present case. He did not click photographs of case property and spot. The investigation of the present case was marked to him at about 10:15 am and he reached at the spot at about 10:40 am on his private motorcycle but he did not remember the registration number of the said motorcycle. He alongwith case property and other staff left the spot and reached the PS at about 02:15 pm and deposited the case property at malkhana.Digitally signed by Abhinav
FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 9 of 20 Abhinav Ahlawat Date:
Ahlawat 2023.12.22 16:02:10 +0530
8. On account of admission of accused u/s 294 Cr.P.C, remaining in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
9. Thereafter, before the start of defence evidence in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused persons were recorded on 30.10.2023 without oath under section 281 r/w 313 CrPC, wherein they stated that they were innocent and were falsely implicated in the present case. They further stated that they do not want to lead defence evidence.
FINAL ARGUMENTS
10. I have heard the Ld. APP for the State and Ld. Counsel for the accused persons at length. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offence.
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12. Per contra, the Ld. Counsel for the accused persons has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it . As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
13. In order to sustain conviction under Section 33 of Delhi Excise Act, prosecution is required to prove the following ingredients:
(i) Accused was found in possession of the illicit liquor and
(ii) He was possessing the same without any licence / permit.
14. The both accused persons hav been charged for the offence of possessing illicit liquor under Section 33 of Delhi Excise Act in the present case. The prosecution has also required to prove that the accused was possessing the illicit liquor without having any licence/ permit in that regard.
15. It is also significant to note that Section 52 of Delhi Excise Act lays down a rebuttable presumption which goes as follows:
"Section 52. Presumption as to commission of offence in certain cases:
1. In prosecution under Section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
2. ........."Digitally signed by Abhinav
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2023.12.22 16:02:25 +0530 APPRECIATION OF EVIDENCE
16. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused.
It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible, owing to which, no presumption, as provided for under Section 52 of the Act, can be raised against the accused in the present case.
The non-joining of any independent / public witness.
17. It is evident from the testimony of the prosecution witnesses that no public witness to the recovery of the liquor has been either cited in the list of prosecution witnesses or has been examined by Digitally signed by Abhinav Abhinav Ahlawat FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 12 of 20 Ahlawat Date:
2023.12.22 16:02:32 +0530 the prosecution. Apparently, IO PW1 had stated in his cross examination that he did not record statement of any public persons, who were present at the spot as due to corona lockdown there were no public persons there. It is the specific version of PW1 that due to corona lockdowns nothing was open at the time of the recovery from accused persons. Although PW1 stated that he was having his mobile phone but despite the same he did not took any photographs of the recovery of illicit liquor from accused persons.
18. However, PW3 and PW4 stated that few public persons and some vehicles were passing by at the time of arrest of accused person. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
".........18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."Digitally signed by Abhinav
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19. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"........The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
20. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly, the independent witnesses were available at the time of recovery but no serious efforts were undertaken by the investigating agency to join them. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining the witnesses from the public is Digitally signed by Abhinav Abhinav Ahlawat FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 14 of 20 Ahlawat Date:
2023.12.22 16:02:47 +0530 an afterthought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
21. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence.
Under Section 100(8) Cr.P.C, refusal to be a witness can render such non-willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, non-compliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
22. This court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much-needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
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Ahlawat 2023.12.22 16:02:54 +0530 Possibility of misuse of seal of the investigating officer
23. As per the version of the prosecution witnesses, after sealing the case property and the samples of illicit liquor with the seal of "VSY", the seal was handed over to PW3 HC Manoj. However, he was a part of the investigation in the present case. Further, there is no document to show that the seal was deposited in malkhana. Therefore, the circumstances under which the seal was obtained and used is under a shadow of doubt.
Moreover, the seal handing over memo had not been prepared. This assumes great significance owing to the fact that the sample was sent to Excise Lab only on 18.06.2020, i.e. after a period of about two months from the date of alleged seizure. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. In addition to this, there is no taking over memo on record to show as to when the seal was taken back. Therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property. Hence, it can be presumed that no handing over memo of seal was prepared by the IO in this regard. In addition to this, there is no taking over or handing over memo on record to show as to when the seal was taken back from malkhana or if it remained with malkhana forever. The seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
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24. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"....The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating Officer- Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."
25. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."Digitally signed by Abhinav
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2023.12.22 16:03:08 +0530 Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
Other infirmities in the prosecution case
26. Furthermore, it is the case of the prosecution that PW1 toPW3 were on patrolling duty and on the instructions of their senior officals in view of the covid 19, they were conducting checking of the vehicles, however no DD entry of such instruction being recived and duty being allotted at the specific area were placed on record which could have lend credence to the case of the prosecution. However, no such record was ever brought by the prosecution.
27. Further, only the photographs of the seized case property, i.e., illicit liquor Ex.P4 is filed but no photographs of the spot of incident or any other scientific evidence like chance print was brought to support the case that illicit recovery was recovered from the car of the accused person. As such the police party remained at the spot for many hours but despite the same neither any electronic evidence like photographs or videography of the place was taken.
Therefore, fact of the accused being present at the spot is shrouded with clouds of ambiguity and cast doubt over the actual presence of the accused at the spot, rendering the version of the prosecution unworthy of credit and giving rise to the suspicion that the accused has been falsely implicated in the present case.
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2023.12.22 16:03:16 +0530 CONCLUSION
28. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
29. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence u/s 33 of Delhi Excise Act beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
30. Accordingly, this Court hereby accords the benefit of doubt to the accused for the offence u/s 33/38/58 of Delhi Excise Act and holds the accused not guilty of commission of the said offence.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 19 of 20 Ahlawat Date:
2023.12.22 16:03:24 +0530 Accused Amit Kumar & Ravinder Kumar are thus, acquitted of the offence u/s 33/38/58 of Delhi Excise Act.
Announced in the open court Digitally signed on 22.12.2023 in the presence Abhinav by Abhinav Ahlawat Ahlawat 16:03:31 Date: 2023.12.22 of the accused. +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/22.12.2023 Note:- This judgment contains 20 pages and each page has been signed by me. Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.12.22 16:03:37 +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/22.12.2023 FIR No. 73/2020, PS Jafarpur Kalan State vs. Amit Kumar etc. Page 20 of 20